A word of caution to litigants who retain a public relations (“PR”) firm to spin the media narrative in their favor: your communications likely are not privileged under California law. Here are two tips litigants should consider when working with a PR firm.
What is the Law on this Issue?
“There is no ‘public relations privilege’ in California, and the courts cannot create one.” Behunin v. Super. Ct. (2017) 9 Cal.App.5th 833, 845. Instead, courts analyze the privilege issue under the traditional attorney-client privilege test applied to communications that include third parties. Application of the privilege “depends on whether the communications were confidential and whether disclosing them to the consultant was reasonably necessary to accomplish the purpose for which the client consulted the attorney.” Ibid.
Tip No. 1
The only way the attorney-client or work product doctrine can apply to communications with a PR firm is to have your attorney involved. Therefore, don’t directly hire the PR firm. Instead, your attorney should retain the PR firm. Involving your attorney won’t guarantee the communications with the PR firm are kept privileged, but the absence of counsel will defeat a privilege argument.
If the attorney’s role with the PR firm is limited to acting as a “liaison” in hiring the PR firm, the privilege will not apply. Behunin, supra, 9 Cal.App.5th at 849. For the privilege to apply, the communication with the PR firm must have been “reasonably necessary to accomplish the purpose of [the attorney’s] representation.” Id. at pp. 850-851. This is a difficult standard to meet.
California courts have cited favorably to a New York decision that found the privilege did not apply where the consultant: “(1) developed a set of key messages and compelling narrative in support of the legal cases; (2) participated in the development of legal strategy; (3) contributed legal recommendations; (4) provided next step action plans; (5) weighed strategic considerations in order to promote the plaintiff’s overall legal goals; (6) discussed ‘legal options’ with the plaintiff’s attorneys; (7) gave advice in determining the benefits of taking legal action; and (8) advised counsel for the plaintiff as to what might be effectively done on the public relations front so the attorneys could properly advise their client as to the appropriate course of action in light of his wider litigation interests.” (Alterations and quotation marks omitted.) Id. at p. 848 [quoting Egiazaryan v. Zalmayev (S.D.N.Y. 2013) 290 F.R.D. 421, 421-431].
The Egiazaryan court held that, despite sworn declarations and in camera review establishing the facts related to the PR firm’s involvement, the privilege did not apply because the PR consultant’s involvement, while helpful, was not necessary. See, Egiazaryan, supra, 290 F.R.D. at p. 431 [“The ‘necessity’ element means more than just useful and convenient, but rather requires that the involvement of the third party be nearly indispensable or serve some specialized purpose in facilitating the attorney-client communications”]. Even though the PR firm was involved in the “legal decision-making process,” that fact did “nothing to explain why [its] involvement was necessary to [the client’s] obtaining legal advice from his actual attorneys.” Ibid; see also, Anderson v. SeaWorld Parks & Enm’t, Inc. (N.D. Cal. 2019) 329 F.R.D. 628, 633 [“the mere fact that such communications relate to litigation is not sufficient – if the communications were intended to develop a public relations strategy in response to litigation, they are not privileged”].
Tip No. 2
This leads to the second tip: if confidentiality is essential, before counsel retains a PR firm ensure the PR firm’s service is “necessary.” While communications between the attorney and the PR firm regarding legal strategy or press releases are helpful, a court probably will not conclude the communications are “reasonably necessary,” unless those communications do not “facilitate communication between [the client] and his counsel” or “improve the comprehension of the communications between the attorney and client.” See, Egiazaryan, supra, 290 F.R.D. at p. 431; see also, Anderson, supra, 329 F.R.D. at p. 634 [“in order for disclosure to a third party to be ‘reasonably necessary’ for an attorney’s purpose, and thus not to effect a waiver of privilege, it is not enough that the third party weighs in on legal strategy. Instead, the third party must facilitate communication between the attorney and client”]. Given this limitation, it is the rare case where a court will find the privilege applies to communications with a PR firm.
If you need a PR firm to address litigation issues, consider having your attorney hire the PR firm to put yourself in the best position to keep the communications with the PR firm secret. While there is still a substantial risk a court will require you to disclose the communications if the other side requests them, if you can present specific evidentiary facts proving the PR firm’s services were necessary for the attorney-client relationship, you have a shot at keeping the communications secret.
Thank you to Brian Kelly for authoring this with me.
Mark Wilson, a trial attorney, has won nearly every case he has tried or arbitrated. He lost only one jury trial and obtained a complete reversal on appeal. Mr. Wilson represents clients in business litigation and legal malpractice cases and was named in the 2017 – 2020 Super Lawyers® Top 50 Orange County lists. Mr. Wilson is a California State Bar certified specialist in Legal Malpractice Law and can be reached at 949-239-0907; [email protected]; and https://www.kleinandwilson.com.